2. The following decision is made in substitution for the decision referred to in paragraph 1 -

1. The Applicant's registration as a chiropractor is suspended for 5 months from 1 September 2000 until 31 January 2001 both dates inclusive.

2. A condition is imposed on the Applicant's registration for five years that he makes available for an annual audit report to the Chiropractors Registration Board of Victoria all of his patient files. The auditors will be selected and appointed by the Board at the Applicant's expense. The report must state whether the auditors are satisfied that the Applicant is providing his patients with health services of a kind that are appropriate. The report must also state whether the auditors are satisfied that the Applicant's patient notes are adequate. The auditors will be requested to pay particular attention to those patient files involving a third party payer such as the Victorian WorkCover Authority and the Transport Accident Commission.

The first audit report shall cover the financial year 2000/2001. Each report shall be provided to the Board within 90 days of the end of the financial year to which the report relates.

3. The Chiropractors Registration Board of Victoria is to pay the Applicant $800.00 costs arising from the adjournment of this proceeding on 24 November 1999 such costs to be paid within 28 days of the date of this Order.

Applicant: Mr Alexander Albert of Counsel instructed by Keith W Allan & Associates, Barristers and Solicitors

Respondent: Mr P O'Grady, solicitor, Minter Ellison, Lawyers

1. This proceeding came before the Tribunal by way of an application by Henry Chen ("the Applicant"), a chiropractor, to review findings and determinations made by the Chiropractors Registration Board of Victoria ("the Board") further to disciplinary proceedings conducted by it in relation to him. The decisions the subject of the application for review are those set out in the Board's "Findings", dated 10 September 1998 and those set out in its "Determinations" dated 23 February 1999.

2. The Orders made by us this day are further to a hearing conducted before us on 18 May 2000 at which we heard submissions from the parties in relation to penalty.

3. The 18 May 2000 hearing was convened further to a decision we published on 1 March 2000. Our decision of 1 March 2000, which affirmed the findings the Board made in relation to the Applicant as published in its decision of 10 September 1998, followed an earlier hearing before us.

4. The proceedings before the Board, and on review before us, concerned allegations of what may be described as over servicing and inadequate record keeping by the Applicant. The Board found in relation to the allegations of over servicing that the Applicant had engaged in unprofessional conduct of a serious nature in that he had engaged in professional conduct which was of a lesser standard that that which the public might reasonably expect of a registered chiropractor, and, in relation to the allegation of inadequate record keeping, that the Applicant had engaged in professional conduct which was of a lesser standard that that which might reasonably be expected of a chiropractor by his peers.

5. Our decision of 1 March 2000 was in the following terms -

"1. We affirm the findings of the Chiropractors Registration Board of Victoria in respect of allegations 3.3.2, 3.7.2, 3.9.2, 3.10.2, 3.11.2 and 3.12 of the Notice of Formal Hearing.

2. We find that the Applicant has engaged in unprofessional conduct. We

further find that that conduct constitutes "unprofessional conduct" as that expression was used in section 13A of the Chiropractors and Osteopaths Act 1978, and also constitutes "unprofessional conduct of a serious nature" as that expression is used in the Chiropractors Registration Act 1996."

6. The relevant provisions of the Chiropractors Registration Act 1996 ("the 1996 Act") commenced on 1 July 1997. All the conduct the subject of the findings of the Board occurred before 1 July 1997.

7. Section 46(2) of the 1996 Act is in the following terms -

(2) If the panel finds that the chiropractor has, whether by act or omission, engaged in unprofessional conduct of a serious nature, the panel may make one or more of the following determinations -

(a) require the chiropractor to undergo counselling;

(d) require the chiropractor to undertake further education of the kind stated in the determination and to complete it within the period specified in the determination;

(e) impose conditions, limitations or restrictions on the registration of the chiropractor;

(f) impose a fine on the chiropractor of not more than $2,000;

(g) suspend the registration of the chiropractor for the period specified in the determination;

(h) cancel the registration of the chiropractor."

8. Section 13A(4) of the Chiropractors and Osteopaths Act 1978 (`the 1978 Act') was in the following terms -

"If, as a result of an inquiry under this section, the Board finds that a chiropractor and osteopath -

(a) obtained his or her registration by fraud or misrepresentation; or

(b) has been guilty in Victoria or elsewhere of unprofessional conduct; or

(c) has been convicted or found guilty of an offence against this Act; or

(d) has been convicted or found guilty of an offence, as a chiropractor and osteopath, under the Accident Compensation Act 1985 -

(f) Impose in relation to the person's practice as a chiropractor and osteopath such conditions, limitations or restrictions as the Board determines;

(g) Cancel or suspend the registration of the person;

(h) If the Board finds that the person has been guilty of unprofessional conduct, in addition to or in substitution for any of the foregoing, impose a fine not exceeding 100 penalty units."

9. It was submitted by Mr O'Grady that the penalty to be imposed by us was to be imposed under the 1996 Act, but must be a penalty that was available under the 1978 Act, and referred to McGrath v The Medical Practitioners Board of Victoria (unreported, Supreme Court of Victoria, Eames J, 1 November 1996, No 5582 of 1996). The following passage is contained at page 12 -

"Similarly, so far as penalties are concerned, s102A(2) (of the Medical Practice Act 1994) ensures that no penalty can be imposed which is of a character more severe than may have been imposed for the like conduct under the 1970 Act."

10. Section 93(2) of the 1996 Act is in similar terms to section 102A(2) of the Medical Practice Act 1994. We consider that the comments of Eames J apply equally in these proceedings and that the penalty we impose must, in effect, be a penalty that was available under the 1978 Act.

11. Mr O'Grady referred to the Board's findings and the penalties imposed by it as reproduced in our decision of 1 March 2000. He also referred to the transcript of the hearing before the Board on 24 September 1998 in relation to penalty. We note in passing that this transcript was provided to us after we had delivered our findings of 1 March 2000. Mr O'Grady also produced to us a copy of written "Reasons For Judgment" of 5 July 1994 of the Chiropractors and Osteopaths Registration Board of Victoria (`the former Board'), further to an inquiry it conducted under section 13A of the 1978 Act concerning activities of the Applicant. We were informed that the conviction imposed on the Applicant in 1992, to which we will later refer, and the 1994 disciplinary proceedings, were the result of identical matters.

12. In so far as relevant considerations as to penalty were concerned we were referred to Morris v Psychologists Registration Board (unreported, Supreme Court of Victoria, Harper J, 19 December 1997, No 6208 of 1997) and Mullany v Psychologists Registration Board (unreported, Supreme Court of Victoria, Gillard J, 22 December 1997, No 5734 of 1997). It was put by Mr O'Grady that in relation to penalty the objective was not to punish the Applicant but to protect the public and, to a lesser extent the profession, through the maintenance of proper ethical and professional standards.

13. We accept the submission of Mr O'Grady that when assessing the appropriate penalty to be imposed the overarching consideration is the protection of the public interest. It is clear that the powers under section 13A of the 1978 Act and section 46 of the 1996 Act are powers to be used for the protection of the public, not for the punishment of the chiropractor.

14. Notwithstanding that the proceedings concerned provisions of the then Motor Car Traders Act 1973, we consider the following extract from the Judgment of Nathan J in The Director of Consumer Affairs v Jay Jacq Pty Ltd (unreported, Supreme Court of Victoria, delivered 4 May 1988) at pages 7a and 8a respectively to apply to this Tribunal in the exercise of powers under section 13A of the 1978 Act -

"The Act is one designed to protect the interests of the community. It establishes a licensing system which regulates the business of motor car trading to those persons who, because they are fit and proper, are permitted by way of licence to trade. Accordingly, the community is entitled to have confidence in the fitness and propriety of motor car traders. That, indeed, is the nature of any licensing system.

The Act is protective of the community interest, providing, on the one hand, criminal offences for proved breaches of business behaviour which have the effect of defrauding the public and, secondly, protecting the public from traders who are unfit or improper persons to hold licences."

15. Notwithstanding that the proceedings concerned provisions of the Estate Agents Act 1980, we also consider the following extract from page 22 of the judgment of Murphy J in Mario Inglese and M Inglese Pty Ltd and Estate Agents Board and The Chief Executive Officer of the Estate Agents Board (unreported, Supreme Court of Victoria, delivered 15 August 1989) to apply to this Tribunal -

"If an estate agent is to be disqualified, the purpose which the Tribunal should have in mind is not the punishment of the individual (though it may appear to be a punishment to him) but the importance of protecting the public and the necessity to maintain standards in the conduct of an estate agent's business."

16. In relation to the penalty imposed by the Board upon the Applicant that he undertake certain further education, Mr O'Grady observed that section 13A of the 1978 Act did not contain a specific provision equivalent to that contained in section 46(2)(d) of the 1996 Act. He submitted that if we considered such a determination to be appropriate, this could be done by the attachment of a condition on the Applicant's registration under section 13A(4)(f) of the 1978 Act.

17. Mr Albert submitted that the Board's determination that the Applicant undertake further education was not available as a matter of law, and that the power to impose conditions under section 13A(4) of the 1978 Act was limited to conditions that regulated the manner of a person's practice. It was put that there had to be a nexus with the practice, and this was not the case in relation to the order as to further education. He submitted that the express inclusion of such a power in the 1996 Act supported this interpretation. He further put that, even if conditions as to education were within power, there was no need to impose them because the Applicant's note-taking was now adequate, and the problem of providing excessive services was now past.

18. We have determined that the protection of the public does not require that we make orders as to further education along the lines of those made by the Board. We are satisfied that this is so having regard to the fact of this proceeding, and the Order we have made imposing a condition on the Applicant's registration to the effect that his patient files are to be audited for the next 5 years. Having so determined, it is not necessary for us to consider whether we would be able, as a matter of law, to make an order that the Applicant undertake further education.

19. Mr Albert submitted that the Board's determination as to penalty was of limited relevance and that we must make our decision on the basis of the evidence and material before us. It was put that the Board had not heard that evidence, or the submissions, or the additional mitigating evidence. Further, events have occurred since the Board's determination that were mitigating in relation to penalty.

20. It is clear that we must make our own decision as to penalty on the basis of the material and evidence before us.

21. Mr Albert informed us that the Applicant was now aged 43, having been born in Taiwan. He arrived in Australia in 1975. He obtained a science degree at the University of Melbourne majoring in pathology. We were told he also obtained an honours degree in science in psychopharmacology. He then worked at a hospital in the pathology department. He commenced the chiropractic course in 1980, graduating in 1983, and began practice the following year. He married in 1983 and has 3 children born in 1985, 1988 and 1996. Among other things, we heard of the professional work of the Applicant and his endeavours by way of fundraising and personal donations toward the establishment of an elderly persons home.

22. Mr Albert outlined the circumstances surrounding the conviction imposed on the Applicant in the County Court in 1992. Briefly put, we were told that in July 1989 a person with whom the Applicant became acquainted, and the Applicant, concocted a scheme whereby the acquaintance forged the Applicant's signature on a cheque and took the proceeds of the cheque, with the Applicant later making a claim on the bank for having honoured the payment of the cheque. This conduct led to the Applicant being convicted for attempting to obtain property by deception. He was sentenced to a term of imprisonment of 4 years with a minimum of 20 months.

23. It is apparent from the outline of the offence as set out in the former Board's decision in 1994, and the penalty imposed, that the offence for which the Applicant was convicted was serious. The amount of money the subject of the offence was $347,475.35. The penalty imposed by the former Board in the 1994 disciplinary proceedings included suspension of registration for 3 months and the imposition of a condition on his registration that he provide to it annual audit reports for the next 5 years.

24. It was put by Mr Albert that the offence was a serious error on the Applicant's part, and he had been punished for it. Since his release from custody he had built up his chiropractic practice, working long hours until late last year. Currently he owns one practice where he works about 2½ days per week and employs 1 chiropractor full time, and 5 support staff, 1 full time and the others part-time. He also works for another chiropractor 2½ to 3 days per week. The Applicant is the sole breadwinner for his family. It was submitted that if the Applicant's registration was suspended for any significant period it was likely that he would be forced to close his practice and terminate the employment of the staff, and may be forced to sell his home to pay his debts and try and support his family.

25. It was submitted by Mr Albert that the offences the subject of the current proceedings were of a different character to the Applicant's previous disciplinary offence. It was put that the earlier offence raised the issue of integrity, and could not be considered as a "warning" or a prior history in the area of technical chiropractic standards, which was the area covered by the offences in this matter. Whilst there were clear differences between the subject matter of this proceeding and the 1994 disciplinary proceedings, not the least of which was that the latter was not related to his practice as a chiropractor, we consider the fact of the 1994 proceedings to be of relevance as to penalty.

26. As the Board stated in its Determinations the subject of the proceedings before us, having had the benefit of the former Board's clear statement on the importance of clear and properly prepared records and accounts, and having sustained a significantly penalty, the Applicant would have been alert to the need to keep proper records. We also consider that having suffered a suspension of registration in the circumstances described, he ought to have been particularly vigilant to ensure that he conducted his practice properly, including not engaging in over servicing of patients.

27. In relation to the specific offence of inadequate note-taking the subject of the application for review, Mr Albert submitted that there were 3 factors which "set the boundary and quality of this offence". The first was that not all of the Applicant's notes were inadequate. The second was that the Applicant's clinical notes were only part of the information the Applicant had on his patient files. The third was that there was no evidence that the inadequacies of the Applicant's clinical notes adversely affected any of the patients or put them at risk, it being submitted that the Applicant had a good understanding of his patients' condition. It was submitted that the "major vice" of the inadequate note-taking was the contribution those inadequate notes had to the risk of over servicing patients.

28. Mr Albert put to us that in determining the appropriate penalty for the contribution of the inadequate notes to the risk of over-servicing we should take into account 3 considerations. The first was specific deterrence. It was submitted that the protection of the community and the maintenance of the standards of the profession was not a factor that needed to be given significant weight in this case. This was so because when the Applicant was made aware that his note-taking was not up to standard, he had taken action to bring his notes up to standard. We were referred to the evidence of Dr Perkoulides in this respect. It was put that no penalty was required to encourage the Applicant to bring his note taking up to a satisfactory standard as it was now at that standard. The second was that in respect of the notes concerning the 5 patients who received excessive services, the unprofessional conduct that resulted in the inadequate notes and the unprofessional conduct that resulted in the excessive services "overlapped" and we should not "double up" on the penalties. The third consideration was that the Applicant had already been punished in relation to the inadequate notes. In relation to the 6 patients in respect of whom the allegations of excessive services were withdrawn, the inadequate notes had led him to be unjustifiably charged with providing excessive services for those patients. Had the Applicant made adequate notes about those 6 patients the allegations of excessive services would not have been made. Mr Albert submitted that in relation to the 11 patients the notice of inquiry not only alleged that the services were excessive, but some of the allegations also asserted there had been no demonstrable benefit to the patients, and that there had been treatment in relation to areas where the patients had not had problems. These allegations were withdrawn. It was put that none of these allegations would have been made if the notes had been adequate at the outset. Mr Albert also contended that the Applicant had suffered stress and incurred expense in defending allegations that ultimately were found not to be justified. The Applicant had suffered detriment to his health.

29. It was put that the fact that the Applicant had been charged with providing excessive services as a result of his notes being inadequate in itself had a strong general deterrent effect to all chiropractors that their notes must be up to standard.

30. These submissions, collectively or individually do not, in our opinion establish a position that no penalty should be imposed in relation to the inadequate note-taking. In our opinion the principle established in the cases to which we have referred, particularly Inglese, require that a penalty be imposed. The circumstances of this case, in our view, amply demonstrate that the protection of the public requires that chiropractors maintain adequate notes. In our Decision of 1 March 2000 we recorded our finding that the Applicant had engaged in conduct which constituted unprofessional conduct of a serious nature. It is clear to us that the maintenance by chiropractors of adequate notes of patient treatment is a significant factor in assisting in the monitoring and regulation of chiropractors to ensure that proper professional standards of practice are maintained.

31. In relation to the specific offences of excessive services, it was submitted by Mr Albert that there was no suggestion that the excessive services were provided deliberately or dishonestly or with any motive other than promoting the health of the patient. It was put that the gravamen of the excessive services offences was negligence in making a clinical judgment. It was put that maintaining the integrity of the profession was not a sentencing consideration that arose in this case.

32. It was further submitted that the charges did not allege that excessive servicing occurred in relation to a significant proportion of the Applicant's workcover patients. The allegations made related to less than 4% of the Applicant's workcover patients during the period, and more than half the allegations were withdrawn. It was put that the blameworthiness was to be assessed regarding the level of difficulty in making the correct judgment. It was submitted that the difficulty the Applicant faced in making the correct judgment was primarily due to a number of factors as follows. The Applicant's treatments for his patients were appropriate, and each patient obtained demonstrable benefit from them. The 11 patients were not a random cross-section of patients. They fell within the most difficult 5% to 10% of the Applicant's workcover patients. The Applicant had not been charged with providing excessive services to any patient who had a simple or routine chiropractic condition. There was not a definite demarcation between adequate and excessive services. The excessive services were contributed to by the Applicant's inadequate notes.

33. As previously stated, we have found that the Applicant's conduct constituted "unprofessional conduct of a serious nature". We have considered these submissions in the context of having accepted evidence to the effect that the level of over-servicing was `significant'.

34. It was put by Mr Albert that there were 3 sentencing considerations in this matter. The first was that there be no doubling up of penalties for excessive services and inadequate notes. The second was specific deterrence against the Applicant ought be given little weight. He had taken steps to ensure these problems do not recur. He had reduced his workcover patient numbers and where possible referred out difficult workcover patients. The third was the health problems and financial detriment that had resulted from the charges. He has suffered major stress as a result of these proceedings. The charges were now of some age. He had consulted a psychiatrist and reduced his practice. The financial detriment he had suffered already included the suspension of payments to him by Workcover for services provided for all his workcover patients for a 6 month period. The total of the suspended payments was approximately $33,000. Thus there was a potential of a defacto penalty of that amount. We record that after the hearing, by letter received by the Tribunal on 6 June 2000, Mr Albert with the consent of the solicitors for the Board advised that by notice dated 22 May 2000 Workcover had directed that the suspended payments be forfeited. We take that advice into account. It was put that further financial detriments flowed from the reduced hours the Applicant now worked as a result of stress associated with this matter, and his legal costs. It was put that the financial cost was in the vicinity of $80,000 to $120,000. It was submitted that these matters were a deterrent to other chiropractors.

35. Mr Albert put to us that a period of suspension was not required to protect the community and would be an excessive penalty. He submitted that the penalties that would be adequate to satisfy specific and general deterrence to protect the public and maintain the standards of the profession would be a combination of reprimands, cautions, fines up to $2,000 for each allegation, and the imposition of audit conditions similar to those imposed by the Board on the Applicant's registration.

36. Having given careful consideration to the material before us, including the evidence of the witnesses called, the supporting written statements of patients, the submissions made on behalf of the parties, and having regard to our findings as detailed in our decision of 1 March 2000, we do not accept the submission that a period of suspension is not required to protect the public and would be an excessive penalty. However, whilst we have given due weight to the period of suspension imposed by the panel of the Board, which included in its membership 2 registered chiropractors, we have concluded that the total period of suspension of 8 months imposed by the Board to be excessive. We are of the opinion that the protection of the public requires that the Applicant's registration as a chiropractor be suspended for a period of 5 months.

37. As earlier stated, we also consider that the protection of the public requires the imposition of a condition on the Applicant's registration for 5 years that his patient files be made available for audit. The condition will require that the auditor's report must state whether the auditors are satisfied that the Applicant is providing his patients with health services of a kind that are appropriate and whether the Applicant's patient notes are adequate.

38. Any adverse report received by the Board from the auditor would, no doubt, prompt further investigation by the Board.

39. We do not consider it necessary in imposing the penalty we have to attribute a particular penalty to each individual allegation or each class of allegation.

40. We consider that the imposition of a lesser penalty than those ordered would fail to protect the public. We consider the imposition of a lesser penalty would suggest to registered chiropractors that conduct the subject of our findings against the Applicant would not jeopardise the continuation of registration and accordingly, not deter chiropractors from engaging in such conduct. We consider that failure to make the orders as stated would erode confidence in the integrity of the registration system from the perspective of both the public and the profession.

The Submissions In Relation To Costs Of 24 November 1999

41. The question of costs was raised further to the circumstances in which the hearing before us was adjourned on 24 November 1999. Briefly stated, that adjournment occurred because of late notice given by the Board of an intention to adduce further evidence at that time, namely a section of transcript of the hearing before the Board. On that date we ordered that costs be reserved. We were on 18 May 2000 informed that there had been no agreement as to costs. Mr Albert requested that we fix reasonable costs, and provided us with a list of costs that resulted further to the application for adjournment. It was not being put that all the costs listed were costs thrown away.

42. Mr O'Grady submitted that the issue of costs in relation to the hearing on 24 November 1999 was about the costs thrown away by reason of the late notice given to the Applicant by the Board of reliance on the section of transcript. Mr O'Grady stated that Counsel for the Board on that date had conceded that it was appropriate that there be some order in relation to the costs thrown away. He submitted that the assessment of costs needed to take into account that it was agreed that the Tribunal members ought to read the material filed under section 49 of the Victorian Civil and Administrative Tribunal Act 1998 before the matter proceeded. It was further put that at some stage Counsel for the Applicant would have been required to consider that section of transcript. Mr O'Grady submitted that any order for the payment of costs as a result of the late notice of reliance on the transcript ought be "merely nominal".

43. We accept the submissions of Mr O'Grady as to the matters we ought take into account in fixing costs. In all the circumstances we have determined that the Board should pay the Applicant the sum of $800.00 costs arising from the adjournment on 24 November 1999, and we order that such costs be paid within 28 days.